Safitri, M.A.
Citation
Safitri, M. A. (2010, December 15). Forest tenure in Indonesia : the socio-legal challenges of securing communities' rights. Retrieved from https://hdl.handle.net/1887/16242
Version: Not Applicable (or Unknown)
License: Licence agreement concerning inclusion of doctoral thesis in the Institutional Repository of the University of Leiden
Downloaded from: https://hdl.handle.net/1887/16242
Note: To cite this publication please use the final published version (if applicable).
THE NATIONAL LEGAL FRAMEWORK
4.1INTRODUCTION
With its theme, 'Forest for People', the Eighth World Forestry Congress held in Jakarta in 1978 promoted a radical change of the prevailing forestry development paradigm (see 3.4). Whereas the state had played the central role in forest tenure and management since the nineteenth century, it was now regarded as failing to deal sufficiently with environmental and social injustice in many countries. According to the new paradigm, national governments should eliminate inequalities of land distribution and people's access to forest.! In response, forested countries developed legislation and programs for recognizing property rights of forest communities and sharing forest management between the state and these people. While their approaches and results varied from one to another, the core idea of community-based forest management became widely accepted.
Almost a quarter of a century later, White and Martin published a report entitled 'Who Owns the World's Forests' (2002). Using official statistical data from major forested countries, the authors found that the role of forest communities was still very limited. They stated that while 24 countries had 3.9 billion hectares of forest or approximately 93 % of natural forests remaining in the world in 2002, 77 % of them were public forests2that were administered directly by the state, and only 4%of these forests were reserved for forest communities (White and Martin 2002:6). This survey seems to indicate that the mission of 'Forest for People' had not had much practical impact on the distribution of forest.
Six years later, another study re-assessed the condition of global forest tenure.
Interestingly, the report stated that there had been a decline of public forests controlled by state agencies during 2002-2008. By completing and updating White and Martin's 2002 data, Sunderlin, Hatcher and Liddle (2008:7) found that 74 % of the world's forests were administered by the state, compared with 80 % they found in 2002
1Djakarta Declaration as can be found in
http://www.fao.org/docrep/12680e/12680e06.htmttthe%20worldo/o2Oof%20forestry (accessed 24-6-2010).
2This report defines the public forests as forests found on land owned by governments, either central or regional governments (White and Martin 2002:4).
(according to the authors' own survey); 2.3 %of these forests were allocated for forest communities (they found in 2002 the rate was 1.5%).
These figures indicate a positive development of state recognition of community forest tenure. However, as Sunderlin, Hatcher and Liddle cautiously conclude, the increase of state forest allocated to forest communities took place only in several countries, namely Brazil, India and Bolivia. In the majority of countries there was no change, some countries even indicated a dropping rate of state forest allocated to forest communities. Peru saw the greatest decline. Interestingly, by using FAO data, for Indonesia Sunderlin, Hatcher and Liddle found a decrease of state forests used by forest communities from 0.6 million hectares in 2002 to 0.23 million hectares in 2008 (Sunderlin, Hatcher and Liddle 2008:9-11). While these findings may be debatable, they make us wonder how the existing Indonesian legislation actually regulates forest tenure. How does the legislation define, interpret and legalize state control and communities' rights over land and forest?
For this research, a legal analysis of the state forest tenure system3 is essential for two reasons. The first is because the state controls around 60 %of Indonesian land that has been designated as Forest Areas. Secondly, this study focuses on Social Forest legislation that is according to Law 41/1999 implemented in state forests. How does the legislation provide a legal basis for the government - in this case the Ministry of Forestry - to control state forest or land classified as Forest Areas? In addition, it is also important to understand how the legislation regulates state forest management and how it allows people to utilize the state forests. Trying to answer these questions is essential to provide a proper background of chapter 5 that will discuss community- based forest management legislation applied in Forest Areas, which in practice have been claimed as state land.
The next section discusses legislation and state institutions pertaining to land and natural resource tenure and management (4.2). The following sections deal with the concept of state control on land and forest: its legal basis, legal interpretations as found in legislation and judicial decisions (4.3) and the implications for community property rights (4.4). The last section of this chapter focuses on state forest tenure and management (4.5).Itconsists of some legal analyses concerning the property status of state and private forest and the state's claim on Forest Areas. In addition, there will be an explanation of regulations pertaining to forest management. How does the forestry legislation classify the different forest uses and how does it regulate forestry licensing?
3For the concept of state forest tenure system see 2.3 (a).
4.2LEGISLATION AND STATE INSTITUTIONS CONCERNING LAND AND NATURAL RESOURCES4
Law 10/2004 concerning Lawmaking5 is the existing legal basis for the hierarchy of legislation in Indonesia. Article 7 (1) and 7 (2) of this Law establish the hierarchical order as follows:
a) The 1945 Constitution(Undang-undang Dasar 1945)
b) Law (Undang-undang)/ Government Regulation in lieu of Law (Peraturan Pemerintah Pengganti Undang-undang, PERPU)
c) Government Regulation (GR) (Peraturan Pemerintah) d) Presidential Regulation(Peraturan Presiden)
e) Regional Regulation(Peraturan Daerah, Perda),consisting of:
i) Provincial Regulation(Peraturan Daerah Provinsi) ii) District Regulation(Peraturan Daerah Kabupaten)6 iii) Village Regulation(Peraturan Desa)
Besides these types of legislation, Law 10/2004 recognizes regulations enacted by ministers and other heads of state agencies (Article 7 paragraph 4 and its elucidation).
This Law states that these regulations are legally binding in so far as their promulgation is to implement higher legislation. Unfortunately, Law 10/2004 does not clearly state the position of ministerial regulations (before 2004 mostly known as ministerial decrees) in the hierarchy of legislation. I assume that the ministerial regulations fall between presidential and regional regulations, considering that ministerial regulations are implemented nation-wide whilst regional regulations only apply to a specific region.
4The major source of this section is Indonesia's National Strategy of Access to Justice (Bappenas 2009) and an unpublished Indira-project joint paper from 2007 (Indira 2007).
5The official name of Law 10/2004 is Law on the making of legislative regulation(Pembentukan Peraturan Perundang-undangan).
6This book also uses the abbreviated termPerda,for example, DistrictPerdafor District Regulations and ProvincialPerdafor Provincial Regulations.
Prior to the fourth amendment of the 1945 Constitution,7 the People's Consultative Assembly (Majelis Permusyawaratan Rakyat, MPR) was the highest state institution that supervised other state institutions including parliament and president. The MPR had the authority to issue a Decree of the People's Consultative Assembly (Ketetapan Majelis Permusyawaratan Rakyat, TAP MPR). Such decrees were legally binding for other state institutions. According to the hierarchy of legislation, as regulated by TAP MPR number III/MPR/2000 concerning legal sources and the hierarchy of laws and regulations, the position of the MPR Decree was immediately below the Constitution.
Since the fourth amendment of the Constitution, the MPR, even though it still exists, is no longer the highest state institution. It merely functions as a joint session between parliament or the People's Representative Council (Dewan Perwakilan Rakyat, DPR) and the newly established Indonesia's Senate, the Regional Representative Council (Dewan Perwakilan Daerah, DPD).The MPR has lost its legal power of enacting an MPR decree (TAP MPR). Consequently, the Decree cannot be considered as taking in a position in the new hierarchy of legislation. Hence, Law 10/2004 does not include the MPR decree in its hierarchy of legislation. However, this does not mean that all existing MPR decrees have become invalid. TAP MPR I/MPR/20038 has categorized the validity of these decrees into six groups. Some groups were no longer considered valid. Others continued to be valid, yet on certain conditions. Of the valid decrees, there are eleven MPR decrees that are valid until the enactment of laws to regulate the contents stated in those decrees.
An example of such a valid MPR decree which is highly relevant to this chapter is MPR Decree number IX/MPR/2001 on Agrarian Reform and Natural Resource Management. This MPR decree provides guiding principles for the implementation of agrarian or land9 reform in Indonesia as well as of undertaking the management of
7During 1999 to 2002, after the end of New Order, the 1945 Constitution was amended not less than four times. In more general terms, Indonesia has several Constitutions. The first was the original 1945 Constitution. In 1949 when Indonesia became a federal state, this Constitution was replaced by the Federal Constitution(Konstitusi Republik Indonesia Serikat). A year later, Indonesia returned to be a unitary state (negara kesatuan) based on a liberal democratic government; a new Constitution, the 1950 Provisional Constitution (Undang-undang Dasar Sementara 1950), was promulgated. In 1959, President Soekarno decided to abrogate the 1950 Constitution, and restored the original 1945 Constitution. This continued during the Suharto's administration despite serious criticisms. Finally, after Suharto resigned the Constitution was successfully amended.
8TAP MPR number I/MPR/2003 concerning the review of the substance and legal status of MPR Decrees from 1960 to 2002.
9The term'agraria'in Indonesian legislation generally represents land, water and all natural resources in rural and urban areas. It does not refer to agriculture at all or to land per se (Tjondronegoro and Wiradi 2004:7). Nevertheless, to many law-makers, legal scholars and practitioners this terminology points to land
natural resource management. To avoid overlap and contradictory legislation in the future/ Article 1 of the decree obliges legislation concerning agrarian reform and natural resource management to be based on the 2001 MPR Decree. Then/ Article 7 obliges the Parliament and the President to regulate the implementation of agrarian reform and natural resource management based on the MPR decree including to revise or abolish legislation that is against this MPR decree.
Thus far/ the Parliament and the President, however/ have not consistently implemented the 2001 MPR Decree. The overlapping and inconsistent nature of legislation about land and natural resources has not changed. Indonesia has numerous laws pertaining to land and natural resources. The basic provisions concerning land and other natural resources tenure and management are laid down in Law 5/1960 on Basic Provisions ofAgraria (Basic Agrarian Law/ BAL). Since most provisions in the BAL relate to land/ many perceive it narrowly as the land law (see also footnote 9 of this chapter). There is also a Law on Spatial Planning/ Law 26/2007/ that regulates the spatial allocation and utilization of land/ water and sea, including air space in which natural resources can be found. For the protection of the environment there is Law 32/2009on Environmental Protection and Management.
For specific natural resources/ there are various laws such as the Law on Forestry (Law 41/1999; amended by Law 19/2004); the Law on Conservation of Living Natural Resources and Their Ecosystem (Law 5/1990); the Law on Plantation (Law 18/2004); the Law on Water Resources (Law 7/2004); the Law on Fishery (Law 31/2004); the Law on Coastal Management and Small Islands (Law 27/2007); the Law on Oil and Natural Gas (Law 22/2001); the Law on Geo-thermal energy (Law 27/2003); and the Law on Mineral and Coal Mining (Law 4/2009).
A major problem with these laws is that they are not well coordinated or harmonised. Each of these laws seems to create an independent regulatory system implemented by autonomous state agencies. This has often led to overlapping and conflicting provisions.
For several reasons, the BAL should be an umbrella law for all other laws and regulations on land and natural resources.1DFirstly/ even though the main part of this law relates to land tenure/ the BAL also consists of provisions concerning other natural resources. In the words of BAL/ it is about /the earth/ water/ and airspace/ including the natural resources contained therein (bumi/ air dan ruang angkasa termasuk kekayaan alam
tenure. As such by the terminology'agrarian law' they mean land law and for' agrarian reform' is meant land reform.
10Other authors argue that the Spatial Planning Law is the more adequate umbrella law than the BAL (see Yusuf 2003:61-2).
yang terkandung di dalamnya).'ll Secondly, the BAL also generally regulates the exploitation of natural resources, either conducted by private companies or by public- private partnership,12 This sort of regulation now forms the basis for major provisions of specific laws on natural resources as previously mentioned. Thirdly, the BAL provides a basis for national and regional spatial planning legislation.13 Similarly, it also has a provision on environmental protection.14 Finally, the BAL itself aims explicitly at becoming the 'basic' act, that is, a foundational act and a main point of reference for other laws pertaining to land and natural resources. This is clearly indicated in the General Elucidation of the BAL, particularly part A.I. paragraphs 4 and 5, as cited below:
The act [the BAL] is formally not different from other acts in the sense that it is to be made by the Government upon approval of the People's Representative Council(Dewan Perwakilan Rakyat).However, due to its nature as a basis for the new agrarian law, the act should contain only the basic principles and issues in a broad outline and, therefore, it should be referred to as Undang-undang Pokok Agraria (Basic Agrarian Law).... [T]he implementation of the Basic Agrarian Law will be regulated by way of acts, government regulations and other forms of legislation.
Interestingly, other laws do not refer to the BAL. An important legal argument in Justification is that according to the hierarchy of legislation as mentioned in the beginning of this section, all laws (undang-undang) have the same position. Thus, even ifthe BAL uses the title 'basic provisions',15this does mean that it is higher than others.
A second reason relates to the administrative practices of state institutions responsible for land and natural resources.
Government officials generally consider the implementation of the BAL as a matter under the authority of the National Land Agency, whereas the other laws are implemented by other ministries or agencies. Thus, the Ministry of Forestry is responsible for implementing the Forestry Law including the Law on Living Natural
11Articles 1 (2), (4), (5) and (6) of the BAL, see also footnote 9 of this chapter.
12Article 8, Articles 12 and 3 of the BAL.
13Article 14 of the BAL.
14Article 15 of the BAL.
15In Indonesian legislation history, the title of 'basic law' (undang-undang pokok) was used in other laws enacted in the New Order period, particularly during the late 1960s to the 1970s, such as Law 5/1967 on Basic Provisions on Forestry (Undang-undang tentang Ketentuan-ketentuan Pokok Kehutanan) and Law 11/1967 on Basic Provisions on Mining (Undang-undang tentang Ketentuan-ketentuan Pokok Pertambangan).
However, since the 1980s, the title of basic provisions or basic law has disappeared.
Resources and Their Ecosystem Conservation. The Agricultural Ministry holds the authority over implementing the Plantation Law. The Ministry of Public Works is responsible for implementing the Law on Water Resources and on Spatial Planning Law. The State Ministry of Environment is the guardian of the Law on Environmental Management. The Ministry of Marine and Fishery oversees the implementation of the Laws on Fishery and Coastal Management. Finally, the Ministry of Energy and Mineral Resources holds authority over implementing the Laws on Oil and Natural Gas, Geo- thermal energy and Mineral and Coal Mining. The interpretation prevailing among government officials is that that ministries and agencies other than the National Land Agency do not necessarily refer to the BAL, but only to specific laws related directly to their domain.
The abovementioned ministries and agencies are part of the central government.
They are directly responsible to the President and in administering their major tasks are coordinated by the Coordinating Minister of Economic Affairs. According to Law 22/1999, now replaced by Law 32/2004 on Regional Government, regional governments - consists of provincial (provinsi), town (kota) and district (kabupaten) governments16 -
have substantive authority in many domains, including 'land and natural resources'.
As such, provincial, town and district governments have their own agencies, known as province or district service(dinas provinsi or dinas kabupaten) that administer land and natural resources. Prior to the implementation of Law 22/1999 on Regional Government, every ministry, including the Ministry of Forestry, had its representative agency in the provinces. These agencies were called the regional offices(kantor wilayah).
After the implementation of Law 22/1999 in 2001, those regional offices of ministries, whose authorities had mostly been passed down to regional governments, were abolished.17
4.3STATE CONTROL ON LAND AND FOREST
Different states hold control over land and natural resources in different ways and legalize that control through various types of national laws. Many of these laws, notably in Southeast Asian countries, have been a continuation of colonial legislation (Lynch and Talbott 1995: 51-66).
Indonesia has developed its own concept of state control on land and natural resources, including forest. A discussion on this concept and its implications is
16See footnotes 6 and 12 of chapter 1.
17A few domains were expected from this far-reaching decentralisation, and ministries working in those domains continued to work in the provinces through their regional offices. They include the Ministry of Religious Affairs, the Ministry of Law and Human Rights.
necessary as the state, in casu the Ministry of Forestry claims the large majority of Indonesian land as Forest Areas. In addition, the existing Indonesian Forestry Law, Law 41/1999, states that the Social Forest policy model is applied to state-claimed forests. Thus, it is crucial to examine how state control of Forest Areas enables or prevents people from obtaining secure property rights on land and forest, which forms the key element of legal security of tenure.
To require an understanding on the notion of state control on land and forest in Indonesian legislation, this section describes three main themes: the basic principles of the state's right on land and forest in Indonesian legislation; the interpretations of this right; and the implications of the state's right to control land and forest for community property rights.
(a) The legal basis of state's right of controlling land and forest
Article 33 (3) of the 1945 Constitution - both in its original and amended versions - is the highest legal basis for the state's right of controlling land and natural resources.
This article states 'the land and the waters as well as the natural riches therein are to be controlled by the state to be exploited for the greatest welfare of the people'.18A similar concept can also be found in Indonesian land and natural resources legislation including the 1960 BAL, and the 1967 Forestry Law as well as its successor, Forestry Law 41/1999.
While the 1945 Constitution uses the notion of the state's right of controlling land and natural resources - henceforth, state's right of control (hale menguasai negara) - it does not explain how this right must be interpreted. We do find an interpretation of this right in the BAL. This law emphasizes that at the highest level, the state - as a manifestation of people's political organization - controls all land, water, and natural resources. According to Article 2 (2) of the BAL, the state's right to control provides the state with the authority to:
• regulate and implement the allocation, use, reservation and preservation of land, water and air space;
41 decide and make regulations on legal relations between humans and land, water and air space;
41 decide and make regulations on legal relations among humans and legal actions concerning land, water and air space.
18 A similar provision on the state's right of controlling land and natural resources was also found in Article 38 of the 1950 Provisional Constitution(Undang-undang Dasar Sementara 1950).
Forestry Laws (both Law 5/1967 and Law 41/1999) also use a provision of the state's right of control. Article 5 of Law 5/1967 stated that all forests within Indonesian territory including all natural resources therein are controlled by the state. The 1999 Forestry Law makes no correction to this provision, except for adding that state control must be used for the greatest welfare of the people (Article 4 of Law 41/1999). Closely resembling the abovementioned BAL provision, Article 4 (2) of Forestry Law 41/1999 states that state control over forests gives the government authority to:
• regulate and govern all aspects related to forest, Forest Areas and forest . products;
• assign the status of certain areas - whether forested land or not - as Forest Areas or not;
• regulate and decide on legal relations between humans and forest and legal actions concerning forestry.
As with the BAL that states that agrarian affairs (urusan agraria) fall under the jurisdiction of the central government,19 Law 41/1999 also considers that the authority deriving from the state's right of control belong to the central government, in this case the Ministry of Forestry.2o
The Ministry of Forestry, thus, has various roles, as policy maker, forest planner, manager, and custodian (Article 10 paragraph 2 of Law 41/1999). This extended authority grants the Ministry with multiple forms of control over the forest including control of forest areas territories, resources and the people living in or having legal relations to forests. The territorial control is manifested by policies and government
19The Elucidation of Article 2 (4) of the BAL.
20 Article 1 point 14 of Law 41/1999. This provision is not in line with the idea of decentralization as promoted by the 1999 Regional Autonomy Law (Law 22/1999). This law gave broader authority to district and municipality governments to regulate land and natural resources in their areas. Enacted after Law 22/1999, Law 41/1999, in contrast, is mostly concerned with the authority of the central government. The Ministry of Forestry assumed that Law 22/1999 did not have enough provisions for forest preservation. In its press release, for instance, the Ministry of Forestry stated that Law 22/1999 allowed District or Provincial Regulations to apply maximum fine of 5 millions Rupiah for any violence of the Regulations;
whilst according to Law 41/1999 the fine can reach 1 billion Rupiah. The Ministry of Forestry said that a low fine imposed by forestry-related regional regulations would be harmful for the forest. Only after a government regulation concerning Government Authority and the Provincial Authority as an Autonomous Region (GR 25/2000 then replaced by GR 38/2007, henceforth is GR on the Division of Government Authority) was enacted, did the Ministry of Forestry develop legislation concerning the guidelines of the implementation of regional forestry authority, notably on forestry licensing. Ten Minister of Forestry decrees were enacted for this purpose (Ministry of Forestry 200lb).
actions in declaring specific territories as Forest Areas, claiming all resources therein as state property and guarding this territory. The resource control emerges when the government monopolizes, taxes, and limits forest trades or transportation of certain species (Peluso and Vandergeest 2001:765). Meanwhile, control of people is determined by government decisions to distribute rights to forest and forest resources to selected people in Forest Areas.
(b) Different interpretations and purposes of the state's right of control
As the Constitution has a general provision on the state's right of control, this opens up different interpretations. A common interpretation as used by the BAL and Forestry Laws regards the state's right of control as a set of public authorities or powers under public law, such as regulating, planning, and allocating land and natural resources.
However, in recent years, Indonesian Constitutional Court has broadened the interpretation of this right. The interpretation can be found in the Constitutional Court's decisions regarding the judicial reviews of Law 20/2002 on Electrical Power,21 Law 22/2001 on Oil and Natural Gas and Law 7/2004 on Water Resources.22
Before describing how the Court has interpreted the notion of the state's right of control, I will explain the phrase'controlled by the state' which has been used in the original and amended 1945 Constitution in two paragraphs of Article 33: in paragraphs (2) and (3). Article 33 (2) states that "sectors of production which are vital for the country and affect the life of the considerable part of the people shall be controlled by the State"(cabang-cabang produksi yang penting bagi negara dan yang menguasai hajat hidup orang banyak dikuasai oleh negara).Then, Article 33 (3) follows by stating that land, water and natural richness therein are controlled by the state for the greatest welfare of the people. In which sense the terms 'vital production sectors' can be distinguished from 'land, water and natural richness' remains unclear from the Constitution and its Elucidation. However, national legislation generally uses the words 'vital production sectors' for mining and other mineral resources as well as for electrical power. Laws regarding these subjects often refer to Article 33 (2) besides to Article 33 (3).
The Constitutional Court interpreted the words 'vital production sectors' in the same way as 'natural richness' in Article 33 (3). However, according to the Court, which resources are meant and when they can be considered as vital, is to be determined by the central government and parliament,23
21Constitutional Court Decision Case number 00l-021-022/PUU-I/2003.
22 Constitutional Court Decisions Case Numbers 002/PUU-I/2003; 05S-059-060-063/PUU-II/2004 and 00S/PUU-III/2005.
23Constitutional Court Decision Case number 002/PUU-I/2003,p.210; 335.
In its decisions, it seems that the Constitutional Court makes two interpretations regarding the notion of state's rights of control. In its decisions on Law concerning Electrical Power and Law on Oil and Natural Gas, the court firstly ruled that the phrase'controlled by the state' in Article 33 (2) and (3) of the Constitution means that pertaining to land and natural resources, the state holds the public authority of policy- making (merumuskan kebijaksanaan), regulating (melakukan pengaturan), governing (melaleukan tindakan pengurusan), managing (melaleukan pengelolaan) and supervising (melaleukan pengawasan), for the greatest prosperity of the people.24 Then, this interpretation was adopted by the Court's Decision on Water Resource Law.25
The Constitutional Court did not explain the meaning of policy-making. However, the term regulating was described as the authority to legislate and implement laws and regulation and regulations-making. Meanwhile, it stated that by the term governing is meant the state's authority of issuing and revoking licenses and concessions. Managing land and natural resources is carried out through share holding and/or direct involvement in the management of state enterprises. Finally, the state has the authority to supervise to ensure that the implementation of state's control upon important natural resources is performed for the greatest prosperity of the people.
According to the Court, the state's authority is derived from the collective ownership of the Indonesian people of land and natural resources as the manifestation of people's sovereignty. The people then mandate the State to apply the authority mentioned. In one sense, this interpretation follows the BAL when constructing the right of the nation (hale bangsa) as the source of the state's right of control.26Yet, unlike the BAL and the Forestry Law, that merely interpret the state's rights of control as a public authority, the Constitutional Court added that the state also holds a private ownership over 'vital production sectors'. The Court considered this private ownership an instrument to maintain the state's control of land and natural resources, as can be seen from the following citation of the Court's Decision on judicial review of Law 20/2002 on Electrical Power:
In the concept of [state] control also includes the concept of private ownership as an instrument to maintain the level of thestate's c.q. government's control in managing the concerned electricity production branch. [Di dalam pengertian penguasan itu tercakup pula pengertian kepemililean perdata sebagai instrumen untuk
24 Constitutional Court Decision Case number OOl-021-022/PUU-I/2003,p.334;Decision on Case number OOl-021-022/pUU-Ij2003,p.211.
25Constitutional Court Decision Case number 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005,p.498-9.
26 The General Elucidation of BAL II (1).
mempertahankan tingkat penguasaan oleh negara c.q. pemerintah dalam pengelolaan cabang produksi listrik dimaksud].27
Thus, regarding the so-called 'vital production sectors' as mentioned in Article 33 (2) of the Constitution, the Court regards the state both as the public authority holder and the owner. The Court argued that both the state's public authority and private ownership exist in the notion of state's right of control in Article 33 (2) of the Constitution.
The question arises whether the Court used the same interpretation of the state's rights of control with regard to other natural resources. Interestingly, it did not. In its Decision on Law on Water Resources, as noted, the Court only applied its public authority interpretation.28
The Constitutional Court stated that it undertook a dynamic interpretation of Article 33 of the Constitution to respond to a changing ideology of state economic developmenU9 This statement calls for a further analysis regarding the interpretation of Article 33 (3) of the Constitution in different Indonesian development ideologies.
Article 33 falls under the Chapter of Social Welfare (Kesejahteraan Sosial)3° which consists of provisions concerning the national economic system.
Historically, this chapter was inspired by the idea of economic socialism.
Mohammad Hatta, an economist who became the first Indonesian Vice President, was the one who strongly promoted this chapter. He was the head of the special commission on economic and finance in the Committee for the Preparation of Indonesian Independence (Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan Indonesia, BPUPKl) - a committee tasked with the making of a constitution.
Hatta thought that the national economic system should be based on the idea of mutual help(tolong-menolong) and collective actions (usaha bersama).In this respect, the role of the state was central to ensure that any exploitation of land and natural resources would contribute to people's prosperity. Land, in Hatta's opinion, was a key production factor. As such, land regulations might be directed to make it a source of prosperity for the people. No institution could'be expected to do so, except the state (Sekretariat Negara 1998:411; Hatta 1954:30-1).
27 Constitutional Court Decision Case number 00l-021-022/PUU-I/2003, p. 335. This interpretation was referred to by The Court Decision on Oil and Natural Gas Law, see Decision, p. 210.
28Constitutional Court Decision on Water Resource Law, p. 498-9.
29Constitutional Court Decision Case number 00l-021-022/PUU-Ij2003, p. 332.
30The second amendment of the Constitution has changed the Chapter's title of Social Welfare to be 'the National Economy and Social Welfare'.
The centrality of the state in land and natural resources control was also emphasized by another intellectual father of the 1945 Constitution, Soepomo. When describing the draft-constitution in a BPUPKl'smeeting, he explained that the state, as a great family of Indonesians, must be in the highest position of controlling land and resource (Sekretariat Negara 1998:301-2). Hatta and Soepomo may have shared the same idea about a state-led economic system. However, in the constitution-making debates they did not provide clear points of view about whether the state had to be the owner of or only apply its regulatory authority to control of land and natural resources.
Finally, after fifteen years of absence of a formal interpretation regarding the state's position to land and resource tenure in Indonesian legislation, in 1960, the BAL clarified this position. The BAL - a law that is also strongly influenced by economic socialism - recognizes that the state is not the owner of land and natural resources. Its General Elucidation II (2) states:
The Basic Agrarian Law is based on the position that in order to achieve what is stipulated in Article 33 (3) of the 1945 Constitution, it is not necessary and not appropriate for the Indonesian nation and State to act as land owner. It is more appropriate for the State, in its capacity as the people's organization of power, to act as an Authority Body (Badan Penguasa). It is from this perspective that the meaning of the provision of Article 2 (1), which says that "the land, water, and airspace, including the natural resources contained therein, are at the highest level controlled by the State" should be seen.
Interestingly, the BAL's view of the state as the holder of public authority was followed by other laws, including those that are known as a product of economic liberal ideology such as Law 5/1967 on Basic Forestry Provisions, Law 11/1967 on Mining, and in the recent decade, are Law 7/2004 on Water Resources and Law 22/2001 on Oil and Natural Gas. As the BAL, these Laws refuse to perceive the state as the owner of natural resources.
Evidently, whatever the development ideology behind the lawmaking is, land and natural resources laws in Indonesia have shared the same interpretation of seeing the state as a public body applying public authority, rather than as the owner of land and natural resources. Thus, it came rather as a surprise that the Constitutional Court introduced a different interpretation, i.e. of a dual position of the state, both as a regulatory body as well as the owner of certain natural resources.
This extraordinary interpretation of the Constitutional Court regarding Article 33 (2) of the 1945 Constitution, has not significantly impacted the current development of land and forestry legislation in Indonesia. The legislation is still in line with the interpretation of the BAL. Neither has, to date, the Constitutional Court's
interpretation of the state's right of control strongly influenced legal discourse in Indonesia. Few studies were carried out about this subject.31 In fact, this interpretation could have many legal implications for the relation between the state and the people regarding land and natural resource tenure. Of which types of natural resources and under which conditions can the state act as the owner? What could be the implication of this state ownership for people's rights, particularly for the rights of adat communities as recognized by Article 18 B (2) and for individual property rights of citizens as stated by Article 28 H (4) of the amended Constitution? Certainly, this book does not aim to provide a comprehensive legal analysis of these questions. However, by describing this issue,itaims to identify the present legal position as one of unfixed legal interpretation concerning the concept of state's right of control. This situation has a negative impact on legal security of forest tenure, that requires clarity concerning the types of state and community property rights and the relation between these rights.
4.4THE STATE'S RIGHT OF CONlROL AND COMMUNITY PROPERTY RIGHTS ON LAND AND FOREST
The common legal interpretation of the state's right of control in Indonesia, as noted, perceives the state as regulatory and managing body applying public authority to land and natural resources. But, in practice, the state behaves as the owner of natural resources, thus confirming one of the Constitutional Court's interpretations. To many legal scholars, this indicates a gap between legislation and practice. While this gap is often referred to as an explanation of the Indonesian state's right of control (Lynch and Talboot1995;Hutagalung2004:21),itraises important questions about the implication for community property rights notably of theadatcommunities.
As described, the1945Constitution contained a general statement of the state's right of control without identifying to which land this right applies. Hatta, almost a decade after, said that the state should control the land. However, according to Hatta, this control should only be applied to land beyond village territory and land belonging to the people as a whole (Hatta1954:31).32In this sense, the state's right of control cannot
31A related study on this issue can be found in Arizona (2007). The study, however, analyzes the types of legal interpretation used by the Constitutional Court; it does not investigate the impact of such an interpretation on the relation between state and community forest tenure system.
32Hatta did not explain his notion of village territory; whether village territory covered only cultivated land or extended to whole areas claimed by a village community. A similar problem concerning the boundary of recognized areas of customary-based land rights (beschikkingsrecht) occurred during the colonial period and raised a sharp debate between scholars such as Nolst Trenite of Utrecht Law School and Van Vollenhoven of Leiden Law School. For an extensive study regarding this debate, see Burns (2004).
be applied to land belonging to village or adat communities not to land privately owned by individual citizens.
A different view of the scope of the state's right of control comes from the BAL.It advances the notion of the state's right of control as applied over all of the country's land, privately or communally owned, or as the law formulates it 'titled or not'. The titled land refers to allland on which statutory land rights are exercised. These rights are enumerated by Article 16 (1) of the BAL as follows: the right to own(hale milile), the right to commercially cultivate (hale guna usaha), the right to construct and possess building (hale guna bangunan), the right to use (hale paleai), the right to lease (hale sewa), the right to clear land(hale membulea tanah), and the right to collect forest products (hale memungut hasil hutan). Untitled land or land without any of those statutory rights is 'land directly controlled by the state' (tanah yang dileuasai langsung oleh negara),33 or in the words of GR 24/1997 on Land Registration, 'state land' (tanah negara).
With regard to the titled or untitled land, the state's right of control only varies as a matter of degree. The BAL's General Elucidation Part A.I1 (2) states:
The State's control as meant above concerns all the land, water, and airspace, whether they are already possessed by individuals under certain rights or not.
The State's control over land which is already possessed by an individual under a certain right is restricted by the contents of the right in question, and this means that the State's control over the land in question ends at the point to which it gives the individual in question authority to execute his right.. ..[T]he State's control over land which is not possessed under a certain right by an individual or another party is broader and full ....[T]he State can grant such land to an individual or corporate body under a certain right.
The content and nature of the state's right of control of untitled land or state land is indicated by the ability of the state to grant private land rights to individuals or legal bodies, or to delegate part of its authorities to regional governments and government's agencies, through a right of management (hale pengelolaan),34that is, the right of such agencies to plan, regulate, use and control state land.
33The phrase 'land directly controlled by the state' can be found in several articles of the BAL: Article 28 (1); Article 37 a; Article 41 (1) and Article 49 (2).
34This sort of right is originated fromeR8/1953 on the Control over State Lands(Penguasaan Tanah-tanah Negara) as the government's legal basis to use land for its tasks. Although passed before the BAL, eR
8/1953 is assumed to be valid. Article 2 (4) of the BAL is the legal basis for continuing the implementation ofeR8/1953 (see the BAL's elucidation II (2) paragraph 7). After the BAL, there have been a number of regulations regarding the implementation of this right of management, promulgated by ministers who were responsible of land/agrarian affairs (Minister of Agrarian and Minister of Home Affairs who in a certain period of the New Order held authority in land/agrarian affairs). Presently, the right of
Itis clear that there are different degrees of state intervention to titled and untitled land. Yet, a problem emerges when the strength of state's right of control is assessed in adat communal land known by diverse names such as for example tanah ulayat, petuanan, or marga. If state land has been defined as that located beyond land with statutory rights, what about the adat communal land? Article 18 B (2) of the Constitution in general recognizes the traditional rights of adat communities, even though it also restricts the rights in some respects.35 Then, Article 3 of the BAL recognizes the communal land ofadat communities as thehale ulayat, a term borrowed from the community land tenure system in West Sumatra.36 By hale ulayat, the BAL refers to Van Vollenhoven's term ofbeschileleingsrechtor right of avai1.37Nevertheless, it is still obscure whether the BAL considers suchhale ulayat land to be state land, and whether the BAL recognizes the rights as communal or collective rights.38
Clarifying the status of public and private land as well as the sorts of communal or collective land rights is important for analyzing the 'robustness' of property rights to determine legal tenure security (see 2.4 (a)). The difference between public and private land determines the types of right bundles allowable on the land and the degrees of state intervention in property rights on these lands. Property rights on state land are generally more restricted than those found on private land. The state has a greater power to intervene in state land than in private land. Meanwhile, making a conceptual
management has been broadly developed.Itis not only held by government agencies but also by private companies. For excellent literature regarding this issue see Parlindungan (1989), Sumardjono (2008:197- 215) and Soemardijono (2008).
35For criticism of Article 18 B (2) of the amended Constitution see Bedner and Van Huis (2008:170-1).
36In the course of this chapter the termhak ulayatandadatcommunal land rights are used interchangeably.
37The Elucidation of Article 3 of the BAL explains that the term'hak ulayatand the like' refers to what customary law literature names'beschikkingsrecht'.Van Vollenhoven was the first to introduce this term.In one of his articles as edited by Holleman (1981), Van Vollenhoven conceptualizesbeschikkingsrechtas the fundamental right of an adat community to freely benefit from and administer land, water and other resources within its territory for the benefit of its members, and by excluding outsiders, except those who have been temporarily privileged to use the land, water and other resources. Thebeschikkingsrechtor right of avail has been a source of individualized user rights of the adat community members (Holleman 1981:43).
38As described in 2.3(b)the notions of communal and collective rights denote different types of rights and right holders. The term communal land rights refers to the rights over land and natural resources that belong to the community as a whole social grup, as has been practiced in many adat communities in Indonesia. The collective land rights are the ownership rights of sub-groups or families within theadat communities.
boundary between communal and individual/collective rights is also necessary to describe the appropriate right holders.
Undoubtedly, the BAL has been the pioneer of state recognition of adatland rights in illdonesia. Article 3 and 5 of the BAL provide clear evidence of this recognition.
However, this recognition has not contributed to a high degree of legal security ofadat communities' land tenure. Firstly, it is because the same BAL, even though recognizing hale ulayat, also promotes restricted, conditional and inconsistent recognition of these rights (Bedner and Van Huis 2008:178-81). The second reason is that the BAL holds dual perceptions as to whether the status of adat communal land is public or private according to the state land tenure system.
Article 3 of the BAL recognizes the hale ulayat as a private right and the adat communities perform as private entities. This is clearly proven by the General Elucidation II (2) paragraph 7 saying that the state's control over land is also restricted, more or less, by thehale ulayat, in so far the right in reality still exists. This means that the state's right of control cannot directly intervene in thehale ulayat,just as it cannot do so in individual private rights. However, Article 2 (4) views the hale ulayat differently.
By saying that the implementation of the state's right of control can be delegated to adatcommunities, this article considersadatcommunities rather as state entities. ill this view thehale ulayatrepresents a delegated state's right of control, and consequently, the land is state land.
State recognition of adat communal land as promised by the BAL is hardly implemented due to this unresolved dual position. General statements as found in Articles 3 and 5 of the BAL are not sufficient to conclude that the BAL recognizes adat communal land rights.Itis necessary to clarify what kinds of rights are recognized by the BAL. The types of rights depend on the status of the land; public and private land will have different types of property rights.
Indonesian legal scholars have different views on this issue. Parlindungan, for example, is one of the few scholars who interpreted the hale ulayat as a delegated authority of the state's right of control (Parlindungan 1989:1-2; 58). He proposed to create rights namely village management rights (hale pengelolaan desa) to recognize the hale ulayat. His argument was based on the interpretation of Article 2 (4) of the BAL stating that the implementation of the state's right of control can be transferred to adat communities. In this view, the delegation may take place as long as required, andifnot in contradiction with national interests; it is to be regulated through a government regulation. Article 2 (4) of the BAL has been used mostly as a legal basis for granting management rights to government agencies.39 In fact, no regulation has been made in
39See General Elucidation Part II (2) paragraph 7 of the BAL.
relation to the delegation of the state's right of control to adat communities. Hence, Parlindungan viewed that it is still necessary to regulate hale ulayat in order to spell it out as a management right.40
Another scholar, Harsono, one of the principal drafters of the 1960 BAL, also believes thatadat communal land orulayatland must be considered as state land. He divides state land into two categories: state land in the broad sense and in the narrow sense. State land in broad sense includes land donated for religious and social purposes according to Islamic law (endowment, tanah waleaj), land with management rights(tanah hale pengelolaan), ulayat land, and land in Forest Areas which are under the Ministry of Forestry's control. State land in the narrow sense covers all land beyond (Harsono 2005:271-3). Itfalls under the authority of the National Land Agency, which can grant private land rights or right of management on that land (Harsono 2003:55).
Harsono's ideas raise some questions, particularly about the status of ulayat land and Forest Areas.Iftheulayatland are put in the same category as Forest Areas, that is, as state land in a broad sense, how can the National Land Agency grant land rights to individual members of adat communities as regulated by the Agraria Minister's Regulation 5/1999 concerning the guidelines of resolving the problems ofulayatrights of customary law-based communities (Article 4 (1) b); while, in the Forest Areas, forestry legislation does not allow for granting private land rights, neither to adat communities nor tonon-adatones? How can the status of Forest Areas undermine the status of ulayat land? The Forestry Laws (both the Law 5/1967 and Law 41/1999) state that forests located in areas controlled by adat communities (Adat Forests) are part of state forests. Unfortunately, Harsono has not answered these questions.
Harsono also does not explain what types of right the state must recognize when dealing with ulayat land. As a proponent of an evolutionist approach of communal land, he argues thathale ulayat will evolve into individual land rights, and eventually disappear in the future. Thus, Harsono says that the state does not need to regulate the hale ulayat (Harsono 2005:189). Surely, this opinion cannot be accepted. Whether in the futureadatcommunal land will evolve into individual land tenure or not, remains to be seen. As for the present, state recognition ofadatcommunal land should be reflected by clear property rights, granted or recognized by the state toadatcommunities.
A slightly different point comes up with Sumardjono who argues that state land (tanah negara) is land without private individual rights, land without management rights (hale pengelolaan), without hale ulayat, and without the rights of Islamic endowment (tanah waleaj). Sumardjono introduces the term'government land' (tanah
40For a different analysis of the Article 2(4) of the BAL see Bedner and Van Huijs (2008:179) who state that the right obtained by adat communities based on Article 2 (4) is merely the right to participate in the implementation of the state's right of control in the context or regional governance.
pemerintah) to denote land used by government institutions. According to her, government land does not fall in the category of state land because it is subject to the exercise of certain land rights such as the right of use and the right of management (Sumardjono 2005:62; 2008:144). She considers ulayat land as private land. Unlike Harsono who believes that the National Land Agency can only have authority to regulate and grant rights to what he calls state land in a narrow sense (Harsono 2005:272), Sumardjono argues that all state land should be administered by the National Land Agency (Sumardjono 2005:63).
Some questions come up with regards to Sumardjono's points. By considering the ulayat land as private land, what kind of private rights can be held by the adat communities to theirulayatland? How can they protect the rights from the state, other citizens and corporations?
Certainly more efforts and a new interpretation of the existing land legislation are needed before adat communal land can be classified as private land. The BAL has not clearly regulated the status of whole adatcommunities - as social entities - in terms of their ability to be private land right holder. Neither does the law contain any explicit statement about whether the hale ulayat should be regarded as one of the land rights enumerated in Article 16 of the BAL. In addition, the BAL does not state that the communal rights of adat communities should be registered. It only states that individual and collective land rights must be converted into ownership or use rights as stated in its Article 16.41
To provide guidelines for resolving these problems related to hale ulayat, the Agrarian Minister/the Head of National Land Agency enacted in 1999 Regulation number 5/1999. This ministerial regulation confirms the possibility of registering adat land by the individual members ofadatcommunities through the BAL's statutory land rights.42 The Regulation then mentions that the ulayat land,43 ifit still exists, must be displayed on the map of land registration, and if possible, recorded in the land register (daftar tanah). Nevertheless, land registration does not determine the property status of the land. GR 24/1997 on land registration explains that even state land must be registered.44 The difference between state and private land is that the former is
41 The rights ofadat communities in the BAL are known among others byhak yasan, andarbeni, ganggam bauntuiak,orbengkok(see Article II and VI of Part two of the BAL).
42 Someadatcommunities have registered their communal land, either by using individual or joint land ownership (ADB 2002; Pusat Kajian Pembangunan Masyarakat Atmajaya 1998; Hermayulis 2000 and Warren 2002). The procedure of land registration follows GR 24/1997.
43The Agrarian Minister/the Head of National Land Agency Regulation 5/1999 defines ulmJatland asland on which thehak ulayat (ulmJatright) ofadatcommunities can be found.
44Article 9 of GR 24/1997.
registered only by documenting the land in the land register, whilst registration of the latter can be followed by issuing land certificates.
What has been described so far indicates that old assumptions concerning the BAL's recognition of adat communal land need to be revisited. The BAL contains serious weaknesses in its provisions onadatcommunal land. Itdoes not provide legal security of tenure of adat communities due to a number of reasons. Firstly, several key provisions are restricted and conditional. Secondly, the regulations concerning adat communal land are inconsistent, no matter whether the land is considered public or private property. Thirdly, there is uncertainty about whether communal or individual land rights are applicable to such land.
Interestingly, the BAL also has an ambiguous position regarding the types of adat land right. On one hand, it considers the right as communal land right (Article 3); on the other, it promotes individual/collective land rights of adat community members.
Article 16 (1) and Article 22 (1) of the BAL and several articles in its provisions concerning land conversion45 mostly deal with land rights of individual members of adat community or collective groups of family, clan and any sub-groups within the communities. The BAL pays more attention to regulation of these individual/collective rights than to the communal rights. In this respect, I agree with Bedner and Van Huis's about deprivation of adat communal rights due to the BAL (Bedner and Van Huis 2008:180-1).
Whilst the BAL contains a number of unclear provisions on the status ofadat land, we must also conclude that the BAL applies different models in terms of its way of legalising the land rights of adat communities. Article 16 (1) and Article 22 (1) of the BAL, followed by Agrarian Minister Regulation 5/1999, legalize the rights of adat communities according to a so-called integration model. In this sense, the rights derived from the community land tenure system integrate into the system of rights as fully regulated by the state. At the same time, the BAL also uses another model of legalisation, recognising that the communities are still autonomous in applying their own community land tenure system. Article 2 (4) must be read in this sense. Similarly, the term recognition as used in the BAL requires further explanation. Unfortunately, the BAL does not do so. Article 3 mentions recognition, but this law only regulates the limitation of the recognition without clarifying the concept of recognition itself.
45The BAL consists of two parts, the first one contains basic principles and provisions concerning land and natural resources tenure; whilst the second part is about the provisions of converting land rights known prior to the BAL's enactment to be integrated into the land tenure system envisaged by the BAL. Some of these provisions regulate the status ofadatindividual and collective land rights in the BAL's land tenure system. For a study on this topic, see Warman (1998).
To conclude this part, it is clear from the above description that the state's right of control to land complicates the security of community property rights, because the land legislation does not sufficiently clarify key provisions regarding the legal status of adatcommunal land and the rights that the adatcommunity or its individual members hold on the land. The status of land - whether it is public or private land - has important implications for the bundle of property rights held byadatcommunities. The type of land right - whether they are communal or individual/collective rights - has legal consequences on tenure relations between people. The models of legalisation of the rights also have different implications. In sum, an appropriate regulation of community property rights, notably for adat communities, requires that state law should clarify these issues. How can the highest degree of legal security of community property rights be achieved if the rights are poorly formulated, if the state legal framework is ambiguous, and if the mechanisms of right protection are unclear?
Without resolving these problems, adatcommunal land will remain vulnerable. These problems are more complicated when they occur in land classified as Forest Areas, as the following section will describe.
4.5STATE FOREST TENURE AND MANAGEMENT
To understand how Indonesian forestry legislation regulates state and community property rights, it is necessary to be acquainted with some legal terms, concepts and classifications used by forestry legislation regarding the property status and formal functions of forest. With regard to its property status, forest consists of state and private forests. Meanwhile, according to its main functions, the legislation distinguish production forest (hutan produksi), protection forest (hutan lindung) and conservation forest (hutan konservasi). Different types of forest property status and functions determine different property rights of people in the forest.
Inaddition, Indonesian forestry legislation also uses the term Forest Area(Kawasan Hutan). The notion is different from the notion of state forest. Analyzing the legal status of state forest and Forest Area in which Social Forest legislation and licensing is to be implemented is important. Likewise, it is also essential to understand the procedure of creating state forest and Forest Areas, including the legal problems embedded in the establishment of these areas. Finally, knowledge concerning forestry licensing is essential as part of the basic information needed by people who need to choose between various ways of utilizing state forests.
This section describes these issues by firstly illustrating how the legislation has defined and classified forests in Indonesia and how it has set up a forestry licensing system in state forests.
(a) State and private forests
Forestry Law 41/1999 defines forest as an environmental landscape which unites land and all biological resources, in particular trees, into an integrated ecosystem unit (Article 1 point 2). In terms of its property status, forest, according to Article 5 (1) of Law 41/1999, consists of state and private forest. Forests found on untitled land are considered state forests;46 whilst forests located on titled land are private forests.47 Article 5 (2) of Law 41/1999 states that state forests can cover forests found in adat communities' land (Adat Forest). Then, the Elucidation of Article 5 (1) explains that state forest can also cover state forests managed by village institutions (Village Forest, Hutan Desa) and state forests that are utilized mainly for forest communities' empowerment (Social Forest,Hutan Kemasyaraleatan).
Land title is the only criterion for classifying the property status of forest as state forest or private forest. According to the General Elucidation of Law 41/1999, the term title refers to those determined by the BAL. Article 16 (1) of the BAL, as known, is the provision that regulates types of private land rights (see 4.4). Itis not clear, however, which land rights are used by the Forestry Law to differentiate state and private forests. The Elucidation of Article 5 (1) of Law 41/1999 says that private forest which is located on land with an ownership (hale milile) title is named People's Forest (Hutan Raleyat). This provision raises the question whether private forests can only be located on land with ownership? How about forest found on land subject to other land rights?
To answer these questions, Forestry Minister's Regulation (Regulation P.26/2005, henceforth Ministerial Regulation on Private Forest) contains guidelines on private forests. The 2005 regulation states that private forests are forests located on land with ownership, use and commercial cultivation rights that have been designated as private forests by a head of district or mayor based on district/town spatial planning.48 As such, private forests are under the jurisdiction of district or town governments. There are two conditions determining the status of private forest: the existence of a land certificate indicating a private right, and the administrative decision of a head of district or mayor to designate the land as private forest.
The Forestry Minister's Regulation on Private Forest cannot fully protect community property rights as rights that emanate from community forest tenure systems (see 2.3). Firstly, it limits the recognition of private forests merely to forest with land certificates. Given the slow process of land registration throughout the country,
46Article 1 point 4 of Law 41/1999.
47Article 1 point 5 of Law 41/1999.
48Article 1 point 1 and Article 2 (1) of Minister of Forestry Regulation P.26/2005.
the use of a land certificate as the only way to prove land rights is not satisfactory.
Furthermore, land registration is mostly concerned with individual title due to the existing land legislation in Indonesia. This is not effectively facilitating the registration of communal land.
Secondly, the 2005 regulation has granted authority to the Forestry Minister to change the status of private forests located in protected and conservation areas to (state) Forest Areas. This has initiated a systematic expansion of state control over private land; as soon as the status of forest function changes into protection or conservation forest, the private land rights will be abolished.49
Clearly, the existence of private forest does not ensure the full protection of community property rights. People's ownership on private forests is still at risk. The situation is even worse in the grey areas, for example on adat communal land where the public or private status is contested.
The 1999 Forestry Law has used the ambiguity of the BAL to strengthen state control overadat communal land. The absence of a land certificate allows the Ministry of Forestry to easily consider it as state land. The Law, then, understandsAdatForest as state forest management delegated to adat communities. The Ministry of Forestry can abolish theadatforestiftheadatcommunities are assumed to no longer exist. Thus, the recognition ofAdatForest in Law41/1999 is another means for reinforcing state power over forests.5o
(b) Forest Areas
The previous section has shown that Law 41/1999 defines forest as an ecological phenomenon. However, in Indonesian forestry legislation there is another important term, that is, Forest Areas (J(awasan Hutan). A Forest Area refers to 'a certain area which is designated and or stipulated by government to be retained as permanent forest'.51 Unlike the concept of 'forest' which is defined primarily on the basis of its physical qualities, the Forest Area is based on a government's administrative decision to allocate and utilize certain land - forested or not - as forest. Forest Areas throughout
49Article 19 of Minister of Forestry Regulation P.26/2005.
50 The Forestry Law was passed under the high pressure of refonning forestry legislation, soon after the end of Suharto's regime. The strongest petition of civil society groups and theadatcommunities was the recognition of adatcommunities' rights on forest. Something has been neglected during three decades implementation of Law 5/1967. The provisions ofAdatForest andadatcommunities in Law 41/1999 are compromising provisions made to meet people's request as well as to maintain the Ministry of Forestry's control to forests. Critics have addressed Law 41/1999 regarding its provisions ofAdat Forest, see for example, ELSAM (1999); Simarmata (2007), Sumardjono (2008).
51Article 1 point 3 of Law 41/1999
